after stating the facts, delivered his opinion as follows:
It is contended on the part of the plaintiff, that the second power, differing essentially from the first, operated as an implied revocation from the moment that Halliday received notice of it, and that consequently the lease under which the defendant claims, was made without authority. On the other hand, the defendant urges, that being a purchaser for valuable consideration without notice of the revocation of the first power, the plaintiff ought not to recover against him. There is no doubt but that as between the principal and his attorney, the first power was revoked as soon as notice was received of the second. From that moment Halliday ought to have ceased to act, and any person injured by his acting may support an action against him. But it is not so clear that the first power is completély extinguished as to third person's, who have no means of knowing of the revocation of it. I do not find any express decision on this subject with regard to powers of attorney which operate upon land: As to agent's, whose power extends to personal effects, we have authorities founded in strong reason. It is said by Lord Chief Justice Holt in 12 Mod. 346, that if a merchant authorises his servant to draw bills in his name, and then dismisses him from his service, and the servant draws a bill in so short a time that the world cannot receive *315notice of his dismissal, or if the dismissal is kept secret, and the servant draws a bill a considerable time after, the master" is bound. So it seems to be agreed, that if partners in trade dissolve their partnership, those who deal with either partner without notice of the dissolution, have a right of action against both. The law was so laid down by Lord Mansfield in Fox and others v. Hanbury. Watson on Part. 201. It seems unjust that when one has authorised another to act for him by a writing, which is- left in possession of the agent, third persons should be affected by a revocation of which iftey have no possibility of notice. The civil law requires notice, as appears by Pothier on Obligations, No. 79, 80, 81. and 448. But it is said that land differs from personal effects; that the title of land is. transferred with more solemnity, and the purchaser is to look to the writings, and seeing from them that the person with whom he deals does not pretend to any thing more than an authority to act for another, he trusts to the good faith of the agent, against whom he has his remedy, if he is deceived by him. It is asked too, to whom and in what manner the principal is to give notice? As to the persons to whom, and the manner iq which notice is to be given, the difficulty is no greater with regard to land, than to personal property. A court and jury may judge of the reasonableness of the notice in the one case as well as the other. As to- the confidence which the purchaser puts in the agent, it is to be remarked that the principal puts confidence in him likewise, and puts in him the original confidence, which gives the opportunity of deceiving others. No act is omitted by the purchaser which prudence or justice could require; he is guilty of no negligence; he conceals nothing by which his neighbour may be injured. Not so the principal. His revocation is known to himself, and he cannot but be conscious that unless made known to others, they may be subject to great injury. But independent of general principles, the plaintiff relies on an act of assembly made in the year 1705, by the fourth section of which it is enacted, that no sale of lands made by virtue of a power of attorney shall be good, unless made while such power is in force, “ and all such powers shall be accounted, deemed “ and taken to be in full force, until the attorney or agent “ shall have due notice of a countermand, revocation, or “ death of the constituent.” It appears by the title of this *316act, that one of its principal objects, was the confirming ' sales of lands made by attornies or agents. The legislature were probably not learned in the law, because it seems to have been a doubt whether acts done by the attorney after the death of the principal, or revocation of the power, and before notice, was good. The act very properly removes all doubt on that subject; but it cannot be supposed that it was intended to lessen any obligations, which by the general principles of law or equity, were imposed on the constituents for the benefit of innocent purchasers. I do not think it necessary on the present occasion to lay it down as a rule, thát in no case is the revocation of a power of attorney effectual, without notice. It is enough to say, that where there has been great negligence, innocent purchasers should be protected. There were particular circumstances which called for notice in the present case. The property was large and adjoining a populous city, so that many persons might be expected to take leases. Halliday resided on the estate, and we must suppose that this was known to his constituents. Having resided there and acted as agent several years, he was continued as an attorney in the second power, which gave him a pretence for remaining in the same habitation, and justified the world in supposing that his original authority was undiminished. The first power was on record, the second remained unrecorded, and unknown, for several months aftér it was in possession of the persons appointed to act with Halliday. Here is a combination of circumstances, tending to put the public off their guard, and, taken alto-' gether, they appear to me to amount to that kind of negligence, which intitles the purchaser to the protection of the law. There is no imputation on the integrity of Mr. Camac, or any of his attornies except Halliday, who certainly acted dishonestly in making leases after notice of the second power. The misfortune is, that too ^much reliance was placed on him. It was taken for granted that he would cease to act alone. Somebody must suffer by him; and under all the circumstances of the case, I am of opinion that the loss should fall on his constituents. I am therefore against a new trial.
Yeates J.The defendant contends that he holds the lands in question under a legal right. He insists that at all *317eyents, such equitable circumstances exist in his case, as would restrict the Court in the exercise of their discretion from awarding a new trial.
The defendant claims under a lease for ninety-nine years dated the 9th of June 1802, from Nicholas Halliday, esquire, as attorney in fact of Turner Camac, esquire, and Sarah his wife, to Stell as attorney in fact of Matthew Feesey, under the yearly rent of five dollars per acre. The letter of attorney to Halliday was duly acknowledged before the Lord Mayor of Dublin, and recorded in Philadelphia county on the 15th of September 1799. The title to the lands antecedently to the lease, is admitted to have been in Mr. Camact and the plaintiff contends that the first letter of attorney was revoked by a subsequent one, dated the 30th of November 1801, constituting the said Nicholas Halliday, Thomas Law, scad Benjamin Chew, junior, their attornies, and empowering them or any two of them to lease this property. The second power was exhibited to Halliday by Mr. Chew on the 5th of May 1802, but was neither recorded, nor advertised, nor generally known. There was no express revocation in it of the first power; but it was so far inconsistent therewith, that it restrained the power to lease to two of the agents. Mr. Law never acted. It was urged, that this second power upon common law principles countermanded the authority under the first power, and that the act of assembly of 1705, 1 Dali. St. Laws 73, removed all doubt on this subject. It is declared by the fourth section thereof, “ that all sales of “ lands shall be accounted, deemed and taken to be in force, “ until the attorney or agent shall have due notice of a countermand, revocation or death of the constituent;” and hence it was inferred, that notice to the attorney ipso facto of either of these events, determines his authority to all legal purposes. To this it is answered with much strength of argument, that the consequence is not necessarily drawn from this old law. The professed object of the legislature was to render the purchasers of lands from the agents of foreign owners more secure in their titles, but not to specify the instances wherein their titles would be defective. The foreign owner confides in the fidelity of his agent here; and if the latter abuses his trust, it .is more equitable -and reasonable that the constituent should suffer thereby, than inno*318cent persons, wholly without the means of information as to the validity of the powers delegated. If the first power be recorded, let him procure the countermand or revocation to be recorded also, or let him give it publicity on or near the lands. By adopting the principle insisted on by .the plaintiff’s counsel, palpable injustice would be often done. Take the case of an attorney in fact duly authorised to collect debts, and suppose his power to be countermanded by some secret act of .his principal, or of his death, made known to himself, ,hut unknown .in .this country, — shall the payment of a debt to such attorney be.thereby invalidated? On whom should the loss fall, if the attorney should become insolvent?
A case occurred in this Court a few years after I had commenced the study of the law, involving principles similar to those which form,the subject of our present inquiry, and made a strong .impression on my mind. It is briefly reported in 1 Dali. 9, and was in substance thus. Benjamin. Albertson, claiming certain lands by descent in .Bucks county, brought an ejectment against Septimus Robeson for their recovery. The title of the lands was clearly shewn to have been at one time in the ancestor of the lessor of the plaintiff; but at a subsequent period the lands were decreed to the defendant, by this Court, in pursuance of certain chancery powers, delegated to them by an old act of assembly. The royal assent was refused to this law in England; and it so happened, that the repeal preceded the decree of this Court above two months,'but the repeal was not known here when the decree was made. The Court determined upon full argument, that the unknown repeal could not affect the right of the defendant under the decree, and the jury found accordingly. I well recollect, that the decision gave general satisfaction to the, profession.
I know no precise rule which can safely be laid down in cases of this nature. Every case must be decided on its own peculiar, circumstances; though great hardships may arise on either side of the question. I do not hold it indispensably necessary, that the countermand or revocation should be recorded in order to obtain that legal effect; but it is highly prudential so to do, where the original power has been entered of record. I think I am safe when I assert,, that where the countermand, revocation or death of the constituent, is *319sot generally known, nor can be traced to the knowledge of the fair lessee or purchaser, and where they cannot justly charged with laches or negligence as to receiving information of either of those events, they ought to be protected upon every principle of sound legal policy.
In the case before us, Halliday was the known agent of Mr. and Mrs. Camac, under their letter of attorney of 1797, duly recorded, living in their mansion house on the premises, and in the actual exercise of powers legally delegated to him. Mr. Chew was co-agent with him under a new letter of attorney dated in 1801, but no publicity whatever was given to it, nor was it recorded. Carelessness or inattention cannot be ascribed to the defendant under these circumstances. The account of Mr. Camac against Halliday furnished in May 1811, ratifying his acts done in certain instances after the 5th of May 1802, and charging the termination of Halliday’s agency in October and November following, are strong additional circumstances in favour of the defendant’s possession.
Upon the whole I am of opinion that the motion for a new trial should be denied, as well on equitable as legal principles.
Brackenridge J.I have expressed my ideas on this case in, my report to the Court, with the notes of the evidence. I said on the trial, that should there be a verdict for the plaintiff, yet if, in arguing the reserved point, it should appear that he was not entitled to retain it, it should be set aside, and a nonsuit entered. This seemed to strike the counsel, or some of them, as what could not be done, as the plaintiff may in all cases refuse a nonsuit, and elect to take a verdict.
The verdict in this case is for the defendant, and it is the same thing to him that a new trial should be denied. But for the reasons given in my report to the Court, I should, like the course better to set aside the verdict, and direct a nonsuit to be entered. And with a view to shew the power of the Court to take this course, I shall take the liberty of making a few observations.
The question comes to this. Can a plaintiff in all cases .refuse to be nonsuited, and say to the Court, charge the jury, *320I will answer and take a verdict? Can the Court in no such case say, let the jury be discharged, and a nonsuit be entered?
It is admitted, that where there is evidence material to the issue, and where the conclusion of fact must be drawn by the jury, before a question of law can arise on that conclusion, the Court cannot direct a nonsuit. But where there is no evidence at all given, or where there is none to a fact, without which being found the action cannot be maintained, has not the Court a right to direct a nonsuit? The plaintiff, it will be said, must be called in all cases; and does not this imply that he has a right to answer and defeat the nonsuit? But what is this answering? Is it not to prosecute his suit by giving evidence? Is it not in this way only, that he can be considered, as in contemplation of law, answering? Would not his answering orally, and under the old law, with a view to defeat an amercement, claiming a verdict, be a contempt? The cases in which nonsuits are usually ordered, are where there is no' evidence material to the issue, or to what is necessary to maintain the action; and without the proof of which, whatever else may be proved, the verdict must be for the defendant, or be set aside by the Court. To what purpose charge the jury, if, on matter of law, not arising from the conclusion of matter of fact to be drawn by them, it clearly appears to the judge, that the verdict, if not for the. defendant, must be set aside? These cases are where, on the evidence disclosed, the Court will appear not to have jurisdiction, where' the plaintiff has mistaken his process, cases of variance between the writ and declaration, the declaration and the evidence, or the nature of the action, tur pis contractus, malum prohibitum, malum in se, contra bonos mores, nudum pactum, and the like; or where something was necessary to be done,- or offered to be done, in order to entitle to bring the action; •or where the requisitas is not merely matter of form, but notice, and demand must precede; notice at common law in the nature of the case, or notice under statute, compliance with a condition precedent in a covenant, cession or abandonment in an insurance case. In all or any of these cases, no evidence appearing, shall the judge be bo'und to carry the matter further, and not say he-will nonsuit the plaintiff? *321Shall he be bound to hear the matter of law argued to the jury, and to charge them on it, or not at once to take it from them, and miente volente the plaintiff, discharge the jury, and direct a nonsuit to be entered? This at least is fit in the modern understanding of the English courts. In the language of the present Chief Justice of the Court of King’s Bench, “ when it is clear the action will not lie, the “judges are in the habit of directing a nonsuit, even though “ the objection appears on the record, and might be taken “ advantage of on a motion in arrest of judgment.” Does not the right which the defendant has, and exercises-, tp move for a nonsuit ex adverso to the plaintiff, imply that the Court have the power to order it? And this is done, either where there is no evidence to support the issue, or where there is no evidence to support a fact material to it, or without establishing which, in the first instance, there can be no recovery, whetheV it be from the person of the defendant, the mistake of action, incongruence of proof, nature of the demand, or any other of that infinity of grounds which will go to defeat it for the present time, or altogether. An action may be brought too soon or too late, and these are clear grounds of nonsuit.- In innumerable cases the verdict is taken for the plaintiff, subject to a point reserved, to be set aside if for the defendant, and a nonsuit entered. Does it not imply the power of the Court to decide on the point of law, and direct a nonsuit? For if it must depend upon the will of the plaintiff to take or avoid the nonsuit, how could this be done? The calling of the plaintiff was with a view to an amercement, which was originally matter of substance, but is now nothing more thah matter of form; and the calling is but the mode of directing the nonsuit. Looking over the reports at Nisi Priiis^ in the English courts, it will be seen that the greater number of cases go off upon nonsuits on legal grounds; and the calling of the plaintiff never supposes that he has a right to resist a nonsuit, by insisting on an argument on the law point before the jury. Hence one cause of the rapidity with which trials are despatched in those- courts. Whatever may have been the understanding or principle at an early period, Courts are now considered by the modern practice, as possessing an authority, paramount to any consent by the plaintiff, to order a nonsuit *322under the circumstances, and to the extent above laid down. I know that in all cases "it may be said, that in strictness the Court do not order a nonsuit. But they overrule the evidence, or rule the point of law, so that the plaintiff cannot go on with the least hope of success with the jury; and this is no more than indirectly producing a nonsuit.
But I say they can directly say, call the plaintiff; and Whether he answer or not, unless he fills up the gap, or shews an action that he can maintain, will nonsuit. He has been called, but answers to no purpose. The jury shall not be charged, but discharged. The calling him is but the' mode of entering the nonsuit, which still remains when the reason of the form has ceased; and the plaintiff when called, is no more expected to answer, than the audience are, when the preacher calls from the pulpit, and puts a question which is but introductory to his own conclusion that he means to draw. I mean in a case where it is understood that he is called but pro forma, and a nonsuit having been ordered is about to be entered, where there is no evidence of fact to go to the jury, but a point of .law is all that is to be considered. This doctrine does not intrench upon that of the jury having a right to judge of the law as well as of the fact in the first instance, when it is submitted to them under the direction of the Court, being involved in the general issue, and cannot in the first instance be separated from it; in which case the Court can interfere only by granting a new trial.
If the plaintiff is called, it is under the idea that he has not followed up his claim with his attendant wimesses. Sec-tam non produxit; and answering, not to produce more, but to escape amercement, is treating the Court with ridicule, and saying I have followed up and produced suit, notwithstanding your notions of the matter; charge the jury, I will take my chance with them on the law which you consider against me. This has nothing to do with the plaintiff being called to take a verdict; his answering in that case is'not matter of form, but substance; for his assent to take it, is essential. A thing cannot be given, where there is not an assent to take; and it is an understanding, when the jury are sworn to give a verdict, that the party will be in court, and willing to take it. The not takings as in every other case,. *323dispenses with the giving. Looking at the American reports, I find this point to have been directly before the constitutional Court of Appeals in South Carolina, in the great case of Brown v. Frost, 2 Bay. 133. It was on a motion for a new trial, because the Judge, at Nisi Prius, did not direct a non-suit. A nonsuit had been moved for on the trial, on the ground of there being no evidence to connect the plaintiff’s title with him in whom the estate was admitted to have been, but-the recital of a deed from him in a conveyance made to the plaintiff. It was the case of a lost deed. It was objected that the Judge had not the power ex adverso, no-' lente volente the plaintiff, to order a nonsuit. The Court lay it down that he had power, but that the recital was evidence to go to the jury. It came also before the Court in Hopkins v. De Graffenreid, 2. Bay. 187. The defendant called for a nonsuit, the plaintiff opposing, and contending that the case should go to the jury. Bay, Justice, refused to suffer a case to go to the jury, where there was nothing to support the plaintiff’s right. It would be a nugatory act. The Court above sustained his right to order a nonsuit, but thought there was evidence to go to the jury. In Massey v. Trantham, 2 Bay. 421, we have precisely the course taken, which I have in this case pointed out. The Court were of opinion, that the judge in the Court below, shoul dhave directed a non-suit, and in that case did not go into a, consideration of the motion for a new trial. On the power of the Court to order a nonsuit, I will add, 2 Bay. 487. It was a motion to set aside a nonsuit, on the ground of its having been irregularly ordered, and the rule was discharged by the Court above as having been regularly ordered. But looking farther on in that book, 441, I find the language that comes precisely up to my idea of the power of the Court, in regard to ordering a nonsuit. Nonsuit ordered by the presiding judge, without the consent pf the plaintiff .in the action, who was willing to risk his case with the jury. It was objected that when a jury is once sworn upon a cause, and charged with the evidence, the judge cannot discharge' them; that if the plaintiff thought proper to risk his cause -to a jury upon such evidence as he could prócure, or such as he thought would bear him out in his case, a judge cannot step in between him and the jury, and prevent them from giving a verdict; nor can a judge order a plaintiff to *324be nonsuit against his will and consent, so as to deprive him by such order, of the benefit of the inestimable trial by a jury of the country. To which it is answered, that it is the province of the judge to determine the law; and no legal evidence being offered to support the suit, it is his duty to direct a nonsuit; for it would be nugatory to send a case to a jury, where there was no legal evidence to support it; and. whatever the old practice might have been in England, of the judges not.;ordering a nonsuit without consent of the plaintiff, when they discovered a defect of evidence, it was neither founded in good sense, nor sound reason, and modern adjudications have determined otherwise. In this country, it is invariably the practice for the judges in all cases to exercise that discretionary power, which the law has vested in them, whenever they have discovered a defect of evidence to support the plaintiff’s claim. Such was the argu- • men't of counsel in this case. — -And by the Court, in this case on a trial before a jury, wherein it appears that the evidence is insufficient to make out the plaintiff’s case, or where there is a total failure of proof necessary for that purpose, it is the duty of a judge to enter a nonsuit, whether the plaintiff consent or not; because there can be nothing to send to a jury to found their verdict upon, and consequently any verdict they would give, would be a nugatory act. I know a distinction has been taken in the books between the ordering a nonsuit, where a point has been reserved, and where it has not; and it is on that ground, that it has been said by some judges, “ that it is impossible to order a nonsuit to be entered, unless by consent, after the plaintiff had appeared, “ and a verdict has been taken.” But there is no reason for the distinction, and it has given way to a better and more modern practice. For what is it whether he has answered, and a verdict given, if on ground of law,he must be thrown out of court ultimately in the action, wanting law or fact established to support the proceeding? But> here the point was reserved, and if the objection has any thing in it, does hot lie.
I could go through the courts of the union, and shew that this is the understanding of the law; but I content myself with referring to the New York Reports, 8 Johns. 25, where on a motion for a nonsuit, the judge ruled “ that the evidence *325“ was insufficient to sustain the action, and nonsuited the “ plaintiffs,” on which a bill of exceptions was tendered, but affirmed in bank; for by the Court, “ if the cause had gone to “the jury, the testimony would not have warranted aver- “ diet for the plaintiffs, and the motion to set aside the non- “ suit, ought to be denied.” Why should I labour a thing so plain, when the cases are numerous, where a verdict taken for a defendant on a point of law which the judge rules in his favour, will be set aside, and where no damage? are to be liquidated, will be ordered to be entered up for the plaintiff. This proves that where a verdict is taken, or to be taken, or depends upon an abstract point of law, it is at the absolute disposal of the Court, without consulting the plaintiff or defendant in the case.
New trial refused.
) 12 Mod. 346.